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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
Case Number: 017658/2024
CENTURY PROPERTY DEVELOPMENTS APPLICANT
(PTY) LTD
AND
ESKOM HOLDINGS SOC LTD FIRST
RESPONDENT
CITY OF JUHANNESBURG SECOND
RESPONDENT
METROPOLITAN MUNICIPALITY
REGISTRAR OF DEEDS PRETORIA THIRD
RESPONDENT
SURVEYOR GENERAL GAUTENG FOUTH
RESPONDENT
JUDGMENT
__________________________________________________________________
MAKUME J:
[1] This application was launched during February 2024, in
which the applicant prayed that the following orders be
granted in its favour, namely:
[1.1] Declaring that the First respondent’s Powerlines
and related infrastructure that bisects erven 5 [… ]
and 5 [… ] Riverside, view Extension, 105 Township,
established on portion 615 of the Farm Diepsloot ,
386 JRS City of Johannesburg Metropolitan
Municipality (the subject property) are unlawful.
[1.2] Compelling the first respondent to permanently
remove the Powerlines and related infrastructure
from the subject property within a period of 14 days
of this order.
[1.3] Directing the first respondent and any other
respondent opposing this application to pay the
costs jointly and severally, the one paying the other
to be absolved, including the costs of two counsel,
where so employed.
[2] The first respondent filed its answering affidavit, in which
amongst others it raised the non -joinder of the Registrar of
Deeds and the Surveyor -General. The first respondent
further placed in dispute that the agreement it concluded
with the City of Johannesburg was invalid and also denied
that it failed to comply with section 65 of the Deeds
Registries Act , no. 47 of 1937. Or regulation 73 (2) of the
Ordinance
[3] As a result of the averments in the first respondent’s
answering affidavit, the applicant filed an application to join
the Registrar of Deeds, as well as the Surveyor -General as
third and fourth respondents. That application was not
opposed. Simultaneously with the joinder application the
applicant sought leave to amend its notice of motion by
adding the following additional prayers, namely:
[3.1] Declaring that the underlying agreement entered
into between the first and second respondents on
23 February 2013, attached E to ANNEXURE JDV26
to the applicant’s founding affidavit (the underlying
agreement) had lapsed due to non -fulfilment of the
suspensive conditions contained therein,
alternatively is void as a result of the second
respondent’s failure to have complied with the
relevant legislation applicable to the disposal and /
or encumbrance of municipal immovable properties.
[3.2] Declaring the registration of notarial deed of
servitude number K 4664/213 as invalid.
[3.3] Ordering the cancellation of the notarial deed of
servitude K 4664/213 as in terms of section 6 (1) of
the Deeds Registries Act , 47 of 1937.
[3.4] Granting the applicant further and / or alternative
relief.
[4] In summary the applicant seeks the following orders:
[4.1] That the first respondent removes the power lines
and other related infrastructure from the subject
property.
[4.2] That the agreement concluded between the first and
second respondents during 2013, which agreement
resulted in the registration of the notarial deed of
servitude, be declared null and void.
[4.3] Directing the Register of Deeds to cancel the said
notarial deeds as being invalid.
[4.4] Costs.
Historical background
[5] It is perhaps appropriate that I set out the historical events
that preceded the launching of this application, and as I
believe that such information is relevant as far as it relates
to questions to be decided in this application.
[6] It is common cause and not in dispute that the subject
property was previously owned by the second respondent
and only became the property of the applicant in December
2022. From as far back as the year 2003 the first
respondent has set out details of various notarial deeds of
servitude registered in favour of the first respondent over a
wide range of properties on the Farm Diepsloot 388 JR, the
subject properties are located on that farm.
[7] On 4 March 2013 Eskom and the City of Johannesburg
concluded an agreement in terms of which a notarial
servitude was to be registered against the remaining extent
of portion 6 on the Farm Diepsloot 386 JR, that underlying
agreement led to the registration of notarial deed of
servitude with reference K 4644/2013S.
[8] On 11 July 2013 after the City of Johannesburg had
published the statutory notices in the newspaper, in terms
of section 79 (18) of the Local Governance Ordinance, the
Registra of Deeds duly registered a notarial deeds
servitude K4644/2013, which provides for a perpetual
servitude of electrical power transmission over the subject
property.
[9] On 15 May 2017 a subsidiary company of the applicant,
namely Riverside Affordable Apartments (Pty) Ltd (RAA),
became the owner of portion 615 of the Farm Diepsloot
number 388 in terms of a sale of agreement RAA had
concluded with the City on 6 June 2015.
[10] Shortly after concluding the sale agreement with the City,
the company RAA had filed an application to establish a
township over the subject property and after receiving no
objections, including approval from Eskom, the township
was registered by the Surveyor -General on 2 January 2020.
[11] During December 2021 Eskom took access over the subject
properties and commenced construction of the transmission
lines, it did so empowered by clause 1.2 of the notarial
deed of servitude which reads as follows:
“Enter and be upon the property at any time in
order to construct, erect, operate, use, maintain,
repair, re- erect, also inspect the structures,
works, appliances, conductors or cables on the
property, or in order to gain access to any
adjacent property in the exercise of similar
rights.”
[12] On 20 December 2022 the applicant Century procured
ownership of a portion of land described as portion 615 of
the Farm Diepsloot number 388, measuring 448181
hectares, from its subsidiary Riverside Affordable
Apartments.
[13] On 13 January 2023 Riverside View was declared a
township ready for development in terms of the documents
submitted by the applicant to the Municipality, as well as to
the Surveyor -General and also to Eskom. It is however
significant to note that the approval was made subject to
certain conditions, specifically clause 2, that expressly
provides that all erven shall be made subject to existing
conditions, servitudes and entitlements.
[14] During August 2023 a meeting was held between the
developer and Eskom. Resulting from that meeting a letter
was addressed to Eskom on 12 September 2023, which
amongst others read as follows:
“It is common cause that Eskom was part of
those of the town planning process from its
inception in 2016. During which it notified the
developer that the proposed development of the
township Riverside View, Extension 105, would
not in any way be affected and / or sterilized by
way of construction of major electrical pylons.
The recently constructed pylons on the subject
property and expansions thereof will significantly
affect the development of approximately 821
SHRA housing units, which are desperately
needed in the area.”
[15] Eskom responded to that letter on 10 October 2023 in the
following words:
“Notwithstanding the above, we place on record
that Eskom is currently engaged in the
construction of Kusile- Lulamisa 400 kv
transmission power lines within the servitude
(K 4644/213S) registered in its favour over the
subject property. The construction of the power
lines is scheduled to be completed in December
2023 and will be commissioned thereafter.”
[16] The applicant on receipt of the above response sent
another letter to Eskom and said the following:
“Subject to paragraph 2 supra we reject Eskom’s
contention that the current construction of the
Kusile -Lulamisa 400 kv transmission power lines
is within the jurisdictional ambit of (K 4644/213S)
over the subject matter. It is common cause that
Eskom failed to inter alia register a route
determination and subsequently acts beyond the
scope of any legal protection which may stem
from K 4644/2013S, and in this regard our rights
remain fully reserved.”
[17] Messrs Ivan Pauw Attorneys for the applicant followed up
with a letter dated 18 January 2024, in which amongst
others they said the following:
“As you may or may not be aware, neither the
applicable title deeds, nor the applicable Deeds
of servitude have been endorsed with the route
determination of the said power lines.
Furthermore, no diagram pertaining to the
alignment of the said power line appears to have
been approved by the Surveyor -General.”
[18] The following day being 19 January 2024 Eskom’s
attorneys, Messrs Haasbroek & Boezaart responded as
follows:
“We enclose a title deed of Erf 5[… ] Riverside
View Extension 105 (T[ … ]) as annexure A.
Condition 4 brings forward a notarial servitude of
power transmission in Eskom’s favour registered
against the instant property under K4644213S.
We also refer to the endorsement on page 5 of
the said deed, that records a perpetual servitude
in Eskom’s favour to construct a substation on
the property, indicated as figure A, B, C, DA on
SG diagram 2181/2022, in terms of a deed of
servitude K1388/2023S.
We enclose a copy of SG diagram, annexure B.
We enclose the title deed of Erf 5[ … ] Riverside
View 105 (T [… ]) as annexure C. Condition E,
page 3, brings forward a notarial servitude of
power transmission in Eskom’s favour registered
against the instant property under K4 644/213S.
Both properties are bound to the rights conferred
to Eskom under notarial servitude K S4644/213.
We enclose a copy of notarial servitude
KS4644/2013S as annexure D. The City of
Johannesburg Metropolitan Municipality granted
Eskom perepetual servitude of power lines and
telecommunication transmission over the
properties.
The servitude was registered in general terms,
therefore Eskom was entitled to implement the
rights acquired under this agreement, although
the precise route is not described.”
[19] The correspondence exchanged between the applicants and
the respondent’s attorneys clearly places in dispute the
validity of the agreement concluded between the City of
Johannesburg and Eskom in 2013. It is in my view
necessary to first deal with that agreement, as in my view
its validity or otherwise is dispositive of the issue of this
application. The second issue to deal with is whether the
servitude was described in general or perepetual terms, or
it should have specified a determined route.
The agreement
[20] On 4 March 2013 Eskom and the City of Johannesburg
Metropolitan Municipality concluded a memorandum of
agreement in terms whereof the Municipality granted Eskom
a perepetual servitude of electric power transmission to be
registered against title deed of the remainder of portion 6,
and remainder of portion 1. The MOA are incorporated by
reference in both notarial deeds of servitude, being
K4036/2013S and K4644/212013S.
[21] The two notarial deeds of servitude were registered by the
Register of Deeds on 11 July 2013, after the Municipality
had caused a notice to be published in the Daily newspaper
in terms of section 79 (18) of the 1986 Ordinance. It is
common cause that no objection was received from the
public against registration of the notarial deed of servitude.
[22] It is common cause that both notarial deeds granted Eskom
the rights to:
[22.1] Erect such structures and works on the properties
or to erect or lead such conductors, cables, or
appliances or other equipment on or over the
properties as will be necessary or convenient in the
executing the right of servitude.
[22.2] To erect such supporting mechanisms for structures
and works with the possibility that it may
reasonably extend beyond servitude and area as
may be necessary or convenient to safely secure
the structure of work .
[22.3] Enter upon the properties at any time in order to
construct, erect, operate, use, maintain, repair, re -
erect, alter or inspect the structures, works,
appliances, conductors, or cables on the properties,
or in order to gain access to any adjacent property
in the exercise of similar right.
[23] The applicant Century Property acquired both properties
subject to all servitudes raised up against the title deed
thereof. The learned Judge Hoexter JA in the matter of
Frye’s (Pty) Ltd v Ries 1957 (3) SA 575 (A) concluded as
follows:
“If a servient tenement is sold, the buyer is
bound by the servitude registered in favour of
the owner of the dominant tenement, and it is
immaterial whether he did or did not know of the
existence of the servitude. Knowledge of the
servitude on the part of a buyer is material only
when the servitude has not been registered. If it
has not been registered the buyer of the servient
tenement is not bound by the servitude unless he
had knowledge of it when he bought.”
[24] The applicant argues that the underlying agreement
contemplated in Deed of servitude K 4644/2013S lapsed due
to non -fulfilment of the suspensive conditions. Secondly,
that the sketch plan referred to in that underlying
agreement was never attached, thus rendering such
underlying agreement void due to vagueness.
[25] Firstly, this attack as to the validity of the underlying
agreement is without merit and falls to be dismissed. The
fact that the applicant maintains that because the
suspensive conditions were not complied with, means that
there is an agreement that was concluded by two statutory
bodies in the absence of the applicant. It is only the
parties to that agreement who can challenge its validity, not
a third party.
[26] It is common cause that during March 2013, and prior to the
registration of the notarial deed of the servitude, the
Municipality caused a notice to be published in the Beeld
newspaper in compliance with section 79 (18) of the 1986
Ordinance, this was to call on the public to indicate if
anyone has an objection to the registration of such notarial
deed of servitude.
[27] No objections were received, hence registration thereof
took place on 11 July 2013, in which Eskom was granted
perepetual servitude of power transmission over the subject
properties. Eskom’s rights became vested before any
township establishment, or any approval of a subdivision.
[28] All the servitudes registered even on other erven which are
not the subject matter of this application, all granted such
right to Eskom, the purpose of either transmission or
distribution of electricity. It therefore makes sense that the
townships were established on condition that Eskom’s
vested servitudes are preserved. Such servitude rights
became vested because the underlying agreement between
Eskom and the City was and remain valid.
Were the intended servitudes defined or general?
[29] The next issue is whether the servitudes were registered,
indicating defined service routes where the Eskom power
lines are to be located, or whether registration of the
servitudes is in general terms. The applicant makes an
issue about the aspect, saying that initially Eskom
maintained that the servitudes were registered as general,
and have now in the supplementary answering affidavit
changed their stance and advocate that the route was
determined or agreed upon.
[30] The argument by Century Property is once again without
merit. Eskom has at all times maintained that the
servitudes are registered in general terms. It must be
remembered that when the servitudes were granted it was
on vacant land owned by the City of Johannesburg and at
that time no township had been planned for establishment.
The establishment of a township with housing units only
came up in the year 2016 and it is for the developer to have
ascertained for themselves about the existence of any
restrictive conditions pertaining to the land on which they
sought to build houses.
[31] The servitudes were registered in general terms with
reference to the underlying agreement. Eskom’s right to
amend the Deeds of servitude by registering a diagram
once the construction of the transmission line was
completed is strictly reserved and is incorporated in the
Register’s notarial deed of servitude. This means that on
registration of a general servitude it is strictly not
necessary to file a diagram depicting the agreed or chosen
route.
[32] It is significant to also note that the City of Johannesburg
Metropolitan Municipality has not filed an affidavit wherein
they agree with the applicant’s contention. The applicant
has no personal or firsthand knowledge of the intentions of
both Eskom and the City of Johannesburg Municipality as
the applicant was not a party when the two statutory bodies
concluded the agreement. Eskom in its initial
correspondence dated 19 January 2024, recorded as
follows:
“The servitude was registered in general terms,
therefore Eskom was entitled to implement the
right acquired under this agreement, although
the precise route is not described.”
[33] It needs to be recorded also that if it was a strict
requirement that approved SG diagrams should be
presented, it is significant that the Register did not reject
the application due to no diagrams being submitted.
[34] In the matter of Tshwane City v Link Africa and Others 2015
(6) SA 440 (CC), a matter wherein the Constitutional Court
found that installation of fibre optic cables in the City’s
existing underground infrastructure, such as storm water
and sewer system, did not require the permission of the
landowner. The Constitutional Court found that such
installations create a public servitude meant to serve the
public interest and does not constitute an arbitrary
deprivation of property. This is precisely what applicant
seems to argue, namely that Eskom is acting arbitrarily by
encroaching on its land earmarked for housing purposes.
The Court in Tshwane supra defined a general servitude to
be a servitude that allows the dominant owner to select the
essentials, incidental rights of necessary premises, and to
take access to them as needed for the exercise of the
servitude.
[35] His Lordship Hefer JA in the matter of Nach Investments
Ltd v Yaldai Investments (Pty) Ltd and Another 1987 (2) SA
820 (A) held as follows:
“The second observation is that where the
formulation does not contain such a reference
and the route is set to be determinable by
agreement, the servitude may or may not be
valid, depending on the intention of the parties.
If the intention is to constitute a specific right of
way, i.e. one which may only be exercised along
a specifically defined route, the agreement is
inchoate at least as to a material term and for
that reason it is unenforceable until the route is
agreed upon, but the agreement is perfectly valid
and enforceable if a general servitude is
intended and there is reference to a future
agreement merely because the parties
contemplate that the route will eventually be
agreed upon. What is envisaged in such a case
is an initial general right, which may be
converted to a specific one by subsequent
agreement. Accordingly, while there is a dispute
about the nature of the right conferred on the
grantee in any given case, the intention of the
parties is decisive, it is to be determined of
course by interpreting the agreement according
to the normal rules of construction.”
[36] Eskom as a statutory body is saddled with a duty to
generate and provide electricity to the citizens of South
Africa, including businesses for purposes of generating
income, and provide much needed employment to the South
African population
Did Eskom abandon or waive its rights?
[37] The next aspect in this matter is whether or not it is correct
for the applicants to maintain that Eskom waived or
abandoned its right in the servitude. Applicants say that
Eskom failed to notify Century Property about the existence
of the servitude; secondly, that Eskom failed to assert its
right in and to the servitude; and lastly, that Eskom agreed
to the opening of a township register and the proclamation
of a township.
[38] The servitude in favour of Eskom was registered a long
time ago, even before the applicant acquired ownership of
the servient land. The Court in Pickard v Stein [2015] 3 All
SA 631 (GJ) held that a servitude may be cancelled if it has
been abandoned, whether expressly or tacitly, which can be
inferred by conduct of the relevant owner. The applicant
contends that Eskom had a duty to inform it of the
existence of the servitude, and having failed to do so, thus
abandoned or waived its existence. This argument does
not make sense, every purchaser of a property has a duty
to satisfy himself of the existence of any abrogation or
encumbrances that may exist over the property. Century
Property purchased the property from its subsidiary, it is
that company as seller that had a duty to inform Century,
the purchaser, of the existence of the servitudes. The
Court in Frye’s (Pty) Ltd v Ries 1957 (3) SA held as
follows:
“Registration in the Deeds Registration Office
gives notice to all the world that the facts
recorded in that registration and it fixes all the
world with knowledge of those facts. The plaintiff
therefore who was an intending lessee and
purchaser was duly fixed with knowledge that the
defendant was only the co -owner of the property
in question. The authorities make it clear that a
lessee or a purchaser who had knowledge, actual
or constructive of facts, which limit the rights of
the owner of the property by means of limitation
in the title, cannot be if he enters into a contract
which the owner is unable to perform because of
the limitation claims, claims damages from the
lessor or seller.”
[39] It is trite law having regard to what is said in Frye’s that
Eskom was under no obligation considering that the
servitudes are registered to bring the existence thereof to
the knowledge of the country and the municipalities, who is
the party that granted Eskom the servitude.
[40] The applicant’s second contention is that Eskom failed to
assert its right into the perceived servitude by agreeing to
the opening of the register on transformation of township.
Century maintain that by so doing, by so failing, Eskom
waived or abandoned its right in and to the servitude. This
argument also has no merit. When the Municipality called
for comments on the township establishment, Eskom
responded positively and expressly stated that it would
raise no objection to the application, provided that its rights
and servitudes are acknowledged and respected at all
times. That is not an attitude of waiver, instead Eskom at
all times asserted its right in the servitude, calling others to
take cognisance and respect such right. It was for Century
to at that stage enquire precisely as to what right was
Eskom referring to at that stage.
[41] Between 1 December 2021 up until February 2023 Eskom
proceeded with the erection and building of the different
foundations for the towers on which the power lines are to
be mounted, during all that period Century and / or its
predecessor in the title RAA, were aware as to the location
and raised no objection. This can never be a case of
waiver or abandonment
[42] The next issue raised by Century is that Eskom is
exercising its right in terms of a servitude, did not do so
civiliter modo . Civiliter modo is a Latin phrase which
means in a civil manner, or with due consideration. In
property and contract law it means a person exercising the
rights such as a servitude or right of way, must do so
reasonably, causing the least possible inconvenience and
damage to the affected properties.
[43] The learned writer AJ Van Der Walt in The Law of
Servitudes page 249, describes the civiliter principle as
follows:
“The servitude holder must exercise the
servitude so as to impose the least possible
burden on the servient owner. This implies that
the balance must be struck between the rights of
the servitude holder to do anything that is
necessary for the proper and effective exercise
of the servitude. The right of the servitude
holder to exercise those entitlements that are
clearly granted in the servitude as a procedural
right of the servitude owner to use her servient
property insofar as that does not interfere with
the legitimate exercise and enjoyment of the
servitude entitlements.”
[44] I fail to understand why applicants argue these principles
on the basis of Eskom’s participation in the establishment
of the township. It must be recorded that Eskom’s access
of the servient property, Erven 5[ … ] and 5 [… ], before the
township was approved and proclaimed, this argument does
not make sense and falls to be dismissed.
[45] Eskom took possession and accessed the servient
properties for construction purposes as detailed in the
notarial deed registered against the servient property.
Eskom requires no permission from Century to access the
property and contract the workers necessary provided for in
the notarial deed of servitude. In my view Century Property
has not established any grounds justifying a finding that
Eskom’s rights were not exercised civiliter.
The abstract system of transfer of ownership in respect of a
servitude
[46] It is trite law that when the City of Johannesburg
Metropolitan Municipality concluded the memorandum of
agreement with Eskom it had the intention to transfer
servitude rights to Eskom, nothing else. There is no
evidence that it did not do so. The fact that diagrams
depicting the route of the power lines may not have been
attached, takes the matter no further, as long as the
intention to transfer existed at the time. There is nowhere
in these papers where Century alleges that the Municipality
intended otherwise.
Conclusion
[47] In my view, I agree with the respondents that cancellation
of the servitude and removal of infrastructure already
constructed will not only cause severe financial loss and
prejudice to Eskom, but will also affect the public in
circumstances where Eskom has a duty to supply
electricity, not only to the Diepsloot area, but to the other
areas.
[48] In the result, I find that the applicant has failed to make out
a case for the relief it seeks, and the application should be
dismissed.
Order
[1] The application is dismissed.
[2] The applicant is ordered to pay the first
respondent’s costs, including costs consequent
upon the employment of two counsel, on scale C.
__________________
MAKUME J
JUDGE OF THE HIGH COURT
JOHANNESBURG
Appearance
For the Applicant: Nic Maritz SC
M Majola
For the Respondent: JP Van Den Berg SC
L Kotze